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Dupree v. State

The trial court properly dismissed the defendant's untimely motion to withdraw his Alford pleas.

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This is an appeal from the dismissal of an untimely motion to withdraw pleas entered pursuant to North Carolina v. Alford , 400 U.S. 25 91 SC 160, 27 LE2d 162 1970. For the reasons which follow, we affirm. On July 10, 2002, Curtis Dupree entered Alford pleas to felony murder, burglary, and theft by taking a motor vehicle. Dupree filed a “Motion to Withdraw Guilty Plea, or, in the Alternative, for an Out-of-Time Appeal” on August 24, 2004. On September 14, 2004, the Superior Court of Clay County entered an order dismissing the motion to withdraw the pleas as untimely and denying an out-of-time appeal. Subsequently, and pursuant to Dupree’s request, the superior court vacated the order and held an evidentiary hearing, in which Dupree and his former counsel, W. Douglas Hall, testified. Dupree sought relief based, inter alia, upon Hall’s alleged ineffective assistance. On December 7, 2004, the superior court issued an order reinstating and incorporating its prior order of Sept. 14, 2004.1

Dupree challenges the trial court’s dismissal of his motion to withdraw his pleas.2 He contends that his attempt to withdraw his pleas is valid because Uniform Superior Court Rule 33.12 A3 allows for the withdrawal of a guilty plea to correct a manifest injustice and does not provide a time frame for doing so; that the holding in Conlogue v. State , 243 Ga. 141 253 SE2d 168 1979, and its progeny, that the only prescribed means for challenging the entry of a guilty plea after the term of court at which the sentence was entered is through habeas corpus proceedings, is no longer valid; and that allowing him to withdraw his guilty pleas was required to correct a manifest injustice to him caused by Hall’s bad advice as to the consequences of his pleas. But Dupree’s contentions are wholly unavailing.

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